The Trump administration has argued in court it should be able to force detained migrant children to sleep on concrete floors and deprive them of soap and toothbrushes.
In a Court of Appeals hearing in San Francisco on Tuesday, the Justice Department challenged earlier legal findings that a landmark class action settlement protecting undocumented migrant children from mistreatment in detention facilities had been violated.
Those judgements found the Obama administration had breached a 1997 settlement in the case of Jenny Lisette Flores v Edwin Meese, which established among other things that detained children be provided with “safe and sanitary” conditions.
US district judge Dolly Gee ruled in 2017 that Customs and Border Protection (CBP) had breached the settlement by failing to provide some detainees with items such as soap, toothbrushes and towels, as well as adequate food and drinking water, according to Court House News.
She also said children were being deprived of bathroom access and adequate sleep, as well as living in sometimes near-freezing temperatures.
Tuesday’s appeal by the Justice Department was an attempt to reverse Judge Gee’s findings because they added new requirements not included in the 1997 settlement.
“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?'” US circuit judge Marsha Berzon asked the Justice Department’s Sarah Fabian on Tuesday.
Judge William Fletcher added: “Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?
“I find that inconceivable that the government would say that that is safe and sanitary.”
Pressed by all three judges on whether she really thought inadequate bedding and failure to provide basic toiletries could constitute safe and sanitary conditions, Ms Fabian said: “I think there’s fair reason to find that those things may be part of safe and sanitary…”
“Not may be. Are a part, why did you say ‘may be’?” Judge Fletcher interrupted.
Tuesday saw no ruling of the appeal, and the judges failed to indicate when there would be one, though the Trump administration’s prospects of success appeared distant.
“Have you considered whether you might go back and consider whether you really want to continue this appeal?” Judge Berzon said, adding: “There doesn’t seem to be a whole lot left of it, considering that life has so moved on now.”